In federal contracting, often times the agencies are given a good amount of leeway in their evaluations and award decisions, so long as the agency followed the solicitation terms. In a recent GAO decision, an agency was reminded by the GAO that it must follow exactly what it wrote in its solicitation when making its award decision. Specifically, past performance criteria must be followed by the agency in evaluation past performance examples.
As shown in previous GAO bid protest reports (here is our blog on the 2024 GAO Bid Protest statistics), if a GAO bid protest is not dismissed, there is only about a 16% chance that the protester will win (i.e., GAO sustains the protest). Often, GAO will defer to an agency’s discretion to evaluate what contractor best fits procurement goals. GAO then gets to avoid disruption of an award decision when the protest boils down to “mere disagreement” with an agency’s evaluations. However, when reviewing an agency’s award decision, there is one thing that the GAO will almost always fall back on–the solicitation’s terms. GAO has made it clear time and again that no matter what, the agency and offeror both must follow what is in the solicitation.
In Trace Systems, Inc., B-422056.9 (Comp. Gen. March 12, 2025) GAO ruled in favor of the protester, because it found that the Army did not follow its own solicitation terms. In Trace Systems, the protester had many arguments, but the relevant issue here is related to past performance and the size of certain “terminals” or antenna systems intended to be demonstrated in past performance.
The solicitation stated that, for past performance, the Army would look at whether offerors had demonstrated “critical capabilities” related to “fixed/strategic” and “tactical” terminals or antenna systems. The performance of work statement explained that the parameters to demonstrate critical capabilities was “primarily for, but [is] not limited to, the Tactical (1-6 meter) and Strategic (7-9 meter) antenna system.” The Solicitation then listed multiple examples of such, but did not provide further explanations of size for any of those examples.
The protester asserted the Army improperly evaluated past performance for the awardee, as it felt the awardee “only demonstrated experience with fixed/strategic terminals” that were “smaller than [the required] 7-9 meters.” The argument made by the protester was that the solicitation terms were clear that “tactical” terminals were defined as 1-6 meters, and “strategic” terminals were defined as 7-9 meters. There was no caveats to these statements in the solicitation, so they were seen by the protester as bright line rules for meeting past performance requirements. Thus, the protester believed the Army acted unreasonably by giving the awardee past performance credit for “strategic” terminals that were smaller than the required 7-9 meters. In response, the Army attempted to argue that the sizes in the performance work statement were simply included as “mere reference” or a “guidepost” for offerors and the descriptions were “not exhaustive nor exclusive.”
GAO agreed with the protester. When reviewing the information from the Solicitation, despite there being a list of terminal examples, that list of examples does not contain evaluation criteria or characteristics. So the plain language of “tactical” terminals being 1-6 meters, and “strategic” terminals as 7-9 meters was the “only criteria provided” for determining what met past performance requirements when evaluating offerors. Additionally, the Army noted that the protester may have also provided past performance that both complied and did not comply with the definitions at issue (similar to what protester argued for the awardee). However, the GAO noted that both parties (awardee and protester) having “terminals within and outside of those size criteria, does not negate the fact that the PWS categorized fixed/strategic and tactical terminals by size, while indicating the size of terminals central to contract performance.” What was offered does not change that the Army was specific about what qualified as “tactical” and “strategic” terminals. Consequently, GAO found that the Army did not follow its own solicitation terms when it utilized an interpretation of fixed/tactical and strategic terminals outside of what was in the plain language of the solicitation.
While it can be an uphill battle for protesters in a bid protest, it does not mean that agencies can do whatever they want. At the end of the day, everyone has to play (or bid) by the same rules, and those rules are set by the terms of the Solicitation. When an agency states a clear standard for something, of course offerors are expected to comply with those requirements, but so is the agency. This case serves as a great reminder for contractors to keep in mind specifications of the solicitation, as it could serve as a basis for a bid protest. Of course, if solicitation term questions or issues are noted prior to the bid due date, it could even serve as a basis for a pre-bid protest of solicitation terms (see our blog on pre-bid protests here and keep in mind that a Q&A is often seen as part of the Solicitation as discussed here). If you are facing questions over solicitation terms, an evaluation, or considering a bid protest, make sure to reach out to federal government contracting attorneys, such as ourselves.
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